NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 24 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TAN NGOC BUI, No. 18-72873 Petitioner, Agency No. A073-276-314 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 7, 2020** Seattle, Washington Before: FERNANDEZ and NGUYEN, Circuit Judges, and BOULWARE, *** District Judge. Tan Ngoc Bui, a native of Vietnam, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) affirming the denial by an immigration * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard F. Boulware II, United States District Judge for the District of Nevada, sitting by designation. judge (“IJ”) of his motion to reopen sua sponte his immigration case. Bui argues that the agency erred by denying his motion, at least in part, for lack of due diligence and by failing to consider all factors relevant to his motion. We have jurisdiction pursuant to 8 U.S.C. § 1252, although our jurisdiction is confined to “the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Finding no such error, we deny Bui’s petition.1 1. The agency did not commit legal error when it cited Bui’s lack of diligence as a reason for denying his motion to reopen sua sponte. The agency cited the correct legal standard for sua sponte reopening, i.e., that the agency’s sua sponte authority “is reserved for truly exceptional situations,” and it applied that standard to Bui’s motion when it explicitly found that he had failed to establish such circumstances. See id. at 585–86. The agency considered Bui’s diligence in assessing whether he had established an exceptional situation sufficient to warrant sua sponte reopening, but it did not supplant the “exceptional situations” test with a novel diligence mandate. We have long recognized the breadth of the “exceptional situations” test for sua sponte reopening, see id. at 579, 584–86, and nothing in the governing regulation or our caselaw precludes the agency from 1 We also grant Bui’s motion to supplement the record on appeal. See Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). 2 considering diligence as a relevant factor, see 8 C.F.R. § 1003.23(b)(1). Far from the “total non sequitur” Bui argues it is, the movant’s diligence in seeking relief can be relevant to the agency’s guiding principle that its sua sponte authority “is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations” or to be “expansively employ[ed] in a manner that . . . fail[s] to give effect to the comprehensive regulatory structure in which it exists.” Matter of J-J-, 21 I. ...
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